6 FLRA No. 110
DEPARTMENT OF HEALTH, EDUCATION
AND WELFARE, REGION VIII, DENVER, COLORADO,
SOCIAL SECURITY ADMINISTRATION, REGION VIII,
DENVER, COLORADO, AND SOCIAL SECURITY
ADMINISTRATION, DENVER DISTRICT,
DENVER, COLORADO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1802
CHARGING PARTY
Case No. 7-CA-244
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENTS HAD
NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
RECOMMENDING THAT THE COMPLAINT BE DISMISSED. THEREAFTER, THE GENERAL
COUNSEL AND THE CHARGING PARTY FILED EXCEPTIONS TO THE JUDGE'S
RECOMMENDED DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE ENTIRE RECORD IN THE
CASE, THE AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS, NOTING PARTICULARLY HIS FINDING THAT THERE IS NO
EVIDENCE OF ANTI-UNION MOTIVATION. FURTHER, THE AUTHORITY NOTES THAT
NOTHING IN THE RECORD OTHERWISE CASTS DOUBT UPON THE LEGITIMACY OF THE
STATED REASONS GIVEN FOR THE TERMINATION OF EMPLOYEE RAYMOND LUCERO AS
EQUAL EMPLOYMENT OPPORTUNITY COUNSELOR.
ORDER
IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE. NO. 7-CA-244 BE, AND
IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ DECISION FOLLOWS --------------------
DANIEL H. GREEN, ESQUIRE
JOHN J. VERLINDEN
FOR THE RESPONDENT
GAVIN LODGE, ESQUIRE
RONALD BROUN, ESQUIRE
FOR THE GENERAL COUNSEL
BEFORE: FRANCIS E. DOWD
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), 92 STAT. 1191, 5 U.S.C. 7101 ET SEQ.
IT WAS INSTITUTED BY THE ISSUANCE OF A COMPLAINT AND NOTICE OF HEARING
ON MARCH 5, 1980 BASED UPON A CHARGE FILED ON SEPTEMBER 14, 1979 AND
AMENDED ON FEBRUARY 19, 1980.
THE COMPLAINT ALLEGES THAT RESPONDENT DHEW AND RESPONDENT SSA (ALSO
REFERRED TO HEREIN AS THE RESPONDENTS) VIOLATED SECTION 7116(A) (1) AND
(2) OF THE STATUTE BY TERMINATING THE APPOINTMENT OF RAYMOND LUCERO AS
AN EQUAL EMPLOYMENT OPPORTUNITY COUNSELOR BECAUSE HE ALSO HELD THE
POSITION OF UNION VICE-PRESIDENT.
AT THE HEARING IN DENVER, COLORADO ALL PARTIES WERE AFFORDED FULL
OPPORTUNITY TO BE HEARD, ADDUCE EVIDENCE, EXAMINE AND CROSS-EXAMINE
WITNESSES, AND ARGUE ORALLY. THEREAFTER, COUNSEL FOR GENERAL COUNSEL
FILED A BRIEF WHICH HAS BEEN DULY CONSIDERED. /1/ FURTHER, THE GENERAL
COUNSEL'S MOTION TO CORRECT THE TRANSCRIPT HAS BEEN CAREFULLY REVIEWED
AND IS HEREBY GRANTED.
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, FROM MY
OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE
TESTIMONY AND EVIDENCE PRESENTED AT THE HEARING, I MAKE THE FOLLOWING
FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDED ORDER.
APPLICABLE PRECEDENT
IN GENERAL SERVICES ADMINISTRATION, A/SLMR NO. 1174, 8 A/SLMR 1386,
THE ASSISTANT SECRETARY OF LABOR, IN A CASE ARISING UNDER EXECUTIVE
ORDER 11491, ADOPTED WITHOUT COMMENT AN ADMINISTRATIVE LAW JUDGE'S
RECOMMENDATION THAT RESPONDENT VIOLATED SECTION 19(A)(1) BY REQUIRING AN
EMPLOYEE TO CHOOSE BETWEEN HER PART-TIME JOB AS EEO COUNSELOR, AND HER
NEWLY ELECTED POSITION OF ASSISTANT SECRETARY-TREASURER-RECORDER OF THE
UNION. /2/ IN REACHING HIS DECISION, THE JUDGE REJECTED THE ARGUMENT
THAT THE HOLDING OF ANY UNION OFFICE, REGARDLESS OF ITS DUTIES, WOULD IN
ITSELF "RESULT IN A CONFLICT OR APPARENT CONFLICT OF INTEREST OR
OTHERWISE BE INCOMPATIBLE WITH . . . THE OFFICIAL DUTIES OF "AN EEO
COUNSELOR WITHIN THE MEANING OF SECTION 1(B) OF THE ORDER. /3/ HE THUS
REJECTED THE AGENCY'S CONTENTION THAT ANY UNION OFFICER IS ESSENTIALLY
AN ADVERSARY OF MANAGEMENT AND AN ADVOCATE FOR EMPLOYEES, AND AS SUCH,
WOULD LACK THE REQUISITE NEUTRALITY AND OBJECTIVITY ESSENTIAL TO
FUNCTIONING EFFECTIVELY AS AN EEO COUNSELOR. INSTEAD, THE JUDGE
CONCLUDED THAT "THE DUTIES OF THE PARTICULAR UNION OFFICE IN QUESTION
MUST BE EXAMINED TO DETERMINE WHETHER ANY CONFLICT WOULD ARISE UNDER
SECTION 1(B) OF THE ORDER IF THE OFFICER SIMULTANEOUSLY SERVED AS AN EEO
COUNSELOR." THE JUDGE THEN FOUND NO CONFLICT OF INTEREST BECAUSE THE
EMPLOYEE WAS A MINOR UNION OFFICIAL WHOSE DUTIES INVOLVED ONLY INTERNAL
MANAGEMENT OF THE UNION AND DID NOT REQUIRE HER TO BE AN ADVERSARY OF
MANAGEMENT AND AN ADVOCATE FOR EMPLOYEES.
CONTENTIONS OF THE PARTIES
THE GENERAL COUNSEL CONTENDS THAT THE INSTANT CASE IS GOVERNED BY THE
GSA DECISION. THE RESPONDENT DOESN'T AGREE WITH THE GSA DECISION IN THE
FIRST PLACE BUT, ASSUMING THAT IT IS GOVERNING PRECEDENT, ARGUES THAT
THE FACTS OF THE INSTANT CASE ARE DISTINGUISHABLE.
THE GENERAL COUNSEL ESSENTIALLY RELIES ON THAT PART OF THE GSA
DECISION WHERE THE JUDGE CONCLUDED THAT THE DUTIES OF THE PARTICULAR
UNION OFFICE BE EXAMINED TO DETERMINE WHETHER ANY CONFLICT OF INTEREST
WOULD ARISE. IT IS ARGUED THAT HERE THE OFFICE OF THE VICE-PRESIDENT
AND THE DUTIES EXERCISED BY FORMER VICE-PRESIDENT VIVIAN RASMUSSEN ARE
NOT RELEVANT; RATHER, ATTENTION SHOULD BE DIRECTED EXCLUSIVELY TO THE
DUTIES OF NEWLY ELECTED VICE-PRESIDENT RAYMOND LUCERO. AND, SINCE
LUCERO EXERCISED NO DUTIES AT ALL IN HIS 2 MONTHS IN OFFICE, WE MUST
RELY ON THE DUTIES WHICH THE NEW PRESIDENT INTENDED TO ASSIGN TO LUCERO.
IN THIS REGARD, IT IS CONTENDED THAT LUCERO'S ROLE WOULD BE A
CEREMONIAL OFFICE-HOLDER WITH NO DUTIES WHICH WOULD CONFLICT WITH HIS
EEO COUNSELOR'S JOB.
RESPONDENTS' POSITION, AS PRESENTED AT THE HEARING, IS AS FOLLOWS:
BUT THE BROAD ISSUE HERE THAT YOU MUST CONSIDER, YOUR HONOR, IS WHAT
IS THE ROLE OF AN EEO
COUNSELOR? HOW DOES HE FUNCTION? WHAT CHARACTERISTICS MUST HE
POSSESS TO BE EFFECTIVE? THE
ANSWER IS THAT HE MUST BE A NEUTRAL. HE MUST HAVE THE TRUST,
CONFIDENCE, AND RESPECT OF BOTH
EMPLOYEES AND MANAGERS. HE MUST SERVE AS A BRIDGE BETWEEN AGGRIEVED
EMPLOYEES AND MANAGEMENT
AND BE ABLE TO FUNCTION WITH BOTH SIDES IN ORDER TO BE EFFECTIVE.
BECAUSE OF THIS MANDATE, THE PERCEPTION OF THE EEO COUNSELOR BY
MANAGERS AND EMPLOYEES AS A
FAIR AND IMPARTIAL INDIVIDUAL IS JUST AS IMPORTANT AS THAT PERSON'S
PERSONAL ABILITY IN THAT
REGARD.
INDEED, WITHOUT THE TRUST AND COOPERATION OF MANAGERS, THE EEO
COUNSELOR COULD NOT DO HIS
JOB AND EVERY MINOR DISPUTE OR MISUNDERSTANDING COULD ESCALATE INTO A
FORMAL COMPLAINT,
THEREBY SERIOUSLY IMPEDING OPERATIONS.
THE SSA POLICY CONCERNING THE PROHIBITION OF UNION OFFICIALS FROM
SERVING AS EEO COUNSELORS
WAS FORMULATED WITH THESE FACTORS IN MIND. CERTAINLY, A
NEWLY-ELECTED UNION VICE-PRESIDENT IS
IN A TRADITIONALLY ACTIVE OFFICE AND WOULD NOT BE PERCEIVED AS A
NEUTRAL BY MANAGERS OR
EMPLOYEES, BUT WOULD NECESSARILY BE PERCEIVED AS AN EMPLOYEE ADVOCATE
AND ENFORCER AND
WATCHDOG OF EMPLOYEES' RIGHTS, AND WOULD THUS BE INEFFECTIVE AS AN
EEO COUNSELOR.
THUS, YOUR HONOR, RESPONDENT URGES YOU TO NARROWLY CIRCUMSCRIBE THE
APPLICATION OF THE
ASSISTANT SECRETARY'S CASE NO. 1174 AND TREAT THAT CASE AS AN UNUSUAL
EXCEPTION,
DISTINGUISHING THE INSTANT CASE FROM IT ON THE BASIS THAT HERE WE'RE
DEALING WITH A VERY
ACTIVE AND IMPORTANT UNION OFFICE TRADITIONALLY INVOLVED WITH
REPRESENTATIONAL DUTIES, NOT ONE
EXCLUSIVELY INVOLVED WITH INTERNAL UNION BUSINESS.
IN ADDITION, RESPONDENT CONTENDS THAT THE APPOINTMENT OF EEO
COUNSELORS IS A DISCRETIONARY MANAGEMENT PREROGATIVE WHICH IS TERMINABLE
AT WILL.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. THE UNIT INVOLVED IN THIS CASE
1. THE CHARGING PARTY HEREIN, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1802, AFL-CIO, IS THE CERTIFIED EXCLUSIVE
REPRESENTATIVE OF ALL NON-SUPERVISORY EMPLOYEES, EXCLUDING
PROFESSIONALS, OF THE DENVER DISTRICT OFFICE, BUREAU OF DISTRICT OFFICE
OPERATIONS OF THE SOCIAL SECURITY ADMINISTRATION OF THE DEPARTMENT OF
HEALTH, EDUCATION AND WELFARE. THIS UNIT IS SOMETIMES REFERRED TO IN
THIS PROCEEDING AS THE "DISTRICT OFFICE" UNIT.
2. LOCAL 1802 ALSO ADMINISTERS A SEPARATE CONTRACT FOR A UNIT (NOT
INVOLVED IN THIS CASE) OF EMPLOYEES AT REGION VIII OF DHEW AND REGION
VIII OF SSA. THIS IS SOMETIMES REFERRED TO AS THE REGIONAL OFFICE UNIT.
B. THE ROLE OF AN EQUAL OPPORTUNITY COUNSELOR
3. FEDERAL PERSONNEL MANUAL LETTER NO. 713-29, DATED SEPTEMBER 12,
1974, IS ENTITLED "INTERRELATIONSHIPS BETWEEN LABOR RELATIONS AND EQUAL
EMPLOYMENT OPPORTUNITY PROGRAMS." THE LETTER WAS ISSUED PURSUANT TO THE
COMMISSION'S RESPONSIBILITY TO REGULATE THE FEDERAL EEO PROGRAMS AND
ALSO TO FURNISH APPROPRIATE GUIDANCE AND TECHNICAL ASSISTANCE UNDER
EXECUTIVE ORDER 11491. PART II(B)(5)(A)(2) OF FPM LETTER NO. 713-29
PROVIDES, IN PART, AS FOLLOWS:
UNION MEMBERSHIP OR INCLUSION IN AN EXCLUSIVE BARGAINING UNIT ARE NOT
VALID REASONS FOR
NON-SELECTION (OF EEO COUNSELORS). SINCE COUNSELORS SERVE ALL
EMPLOYEES (I.E. REGARDLESS OF
BARGAINING UNIT STATUS) EVERY EFFORT SHOULD BE MADE TO HAVE AS BROAD
A REPRESENTATION AS
POSSIBLE, WITHOUT LIMITING SELECTIONS TO THE UNIT OF RECOGNITION.
FURTHERMORE, SINCE A
COUNSELOR SERVES AS A BRIDGE BETWEEN THE COMPLAINANT AND MANAGEMENT
IN RESOLUTION OF PROBLEMS,
RATHER THAN AS A CHOSEN OR DESIGNATED REPRESENTATIVE OF THE
EMPLOYEES, AND SINCE A COUNSELOR
MAY NEED ACCESS TO OTHERWISE RESTRICTED INFORMATION IN ORDER TO
FUNCTION EFFECTIVELY, CARE
SHOULD BE TAKEN TO AVOID CONFLICTS OF INTEREST SUCH AS PROSCRIBED BY
SECTION 1(B) OF EXECUTIVE
ORDER 11491, AS AMENDED.
4. THE SOCIAL SECURITY ADMINISTRATION HAS A POLICY OF PROHIBITING
EMPLOYEES FROM SERVING AS EQUAL OPPORTUNITY COUNSELORS WHEN THEY ARE
SUPERVISORS AND/OR HIGH RANKING OFFICIALS OF A LOCAL UNION.
A. THERE HAVE BEEN INSTANCES IN THE PAST WHERE EEO COUNSELORS LEFT
THEIR JOB DUE TO THEIR PROMOTION TO SUPERVISORY POSITIONS.
5. RAYMOND LUCERO HAS BEEN EMPLOYED BY SSA SINCE 1973 AND CURRENTLY
IS A CLAIMS REPRESENTATIVE. IN SEPTEMBER 1978 HE WAS APPOINTED AS AN
EEO COUNSELOR, ON A PART-TIME BASIS. IN DECEMBER 1978 HE WAS SENT TO
BALTIMORE FOR TRAINING AND WAS FURNISHED WITH TRAINING MATERIALS WHICH
INCLUDED INFORMATION CONCERNING SSA'S POLICY WITH RESPECT TO PROHIBITING
UNION OFFICIALS FROM SERVING AS EEO COUNSELOR.
6. SOMETIME IN THE SPRING OF 1979, LUCERO WAS ASKED WHETHER HE WOULD
ACCEPT NOMINATION AS UNION VICE-PRESIDENT FOR THE DISTRICT UNIT. HE
AGREED. ALTHOUGH HE DID NOT CAMPAIGN FOR OFFICE, HE WAS ELECTED AND WAS
INSTALLED IN MAY 1979. THIS WAS THE FIRST UNION OFFICE THAT LUCERO HAD
HELD. PRIOR TO THE ELECTION HE WAS REMINDED OF SSA'S POLICY BY SUZANNE
ELDER (EEO OFFICER) BUT HE CHOSE TO DO NOTHING ABOUT IT. (TR. 78) WHILE
I CREDIT ELDER OVER LUCERO, I DO NOT REGARD IT AS CRUCIAL THAT HE KNEW
OF SSA'S POLICY AND CHOSE TO IGNORE IT. ELDER DID NOT SUGGEST TO LUCERO
THAT HE REFRAIN FROM RUNNING FOR UNION OFFICE.
C. THE ROLE OF THE UNION VICE-PRESIDENT AS SET FORTH IN
THE UNION'S CONSTITUTION
7. WHEN LOCAL 1802 HAS AN ELECTION FOR UNION OFFICERS, IT ELECTS ONE
PRESIDENT AND ONE SECRETARY-TREASURER WHO ACT ON BEHALF OF BOTH THE
DISTRICT AND REGIONAL UNITS. THE CONSTITUTION CALLS FOR THE ELECTION OF
A VICE-PRESIDENT FROM EACH UNIT AND SPECIFIES IN ARTICLE IV, SECTION 6,
THAT IN CASE OF VACANCY IN THE OFFICE OF PRESIDENT, THE THE
VICE-PRESIDENT WHO WILL MOVE UP TO FILL THE OFFICE OF PRESIDENT WILL BE
FROM THE "OTHER" UNIT. THUS, IF THE PRESIDENT COMES FROM THE DISTRICT
UNIT AND SHOULD RESIGN THE PRESIDENCY, HE OR SHE WOULD BE SUCCEEDED BY
THE VICE-PRESIDENT OF THE REGIONAL OFFICE UNIT.
A. OF COURSE, THE NET EFFECT OF THIS IS THAT BOTH VICE-PRESIDENTS
STAND TO BE ELEVATED TO A HIGHER STATUS SHOULD THE PRESIDENT DIE OR
RESIGN.
B. VELMA SLACK TESTIFIED THAT IN HER 4 1/2 YEARS AS ASSISTANT
DISTRICT MANAGER, THE UNION PRESIDENT HAD ALWAYS BEEN FROM THE REGIONAL
UNIT PRIOR TO THE ELECTIONS DESCRIBED IN THIS PROCEEDING.
8. ARTICLE IV, SECTION 9 STATES THAT IN THE ABSENCE OF THE
PRESIDENT, "A" VICE-PRESIDENT SHALL PRESIDE. THERE IS NO OTHER
CONSTITUTIONAL PROVISION SETTING FORTH SPECIFIC DUTIES OF EITHER
VICE-PRESIDENT. HOWEVER, ARTICLE V, SECTION 1 STATES THAT ALL OFFICERS
SHALL CONSTITUTE THE EXECUTIVE COMMITTEE AND SHALL MEET AT THE CALL OF
THE PRESIDENT.
D. THE ROLE OF THE UNION VICE-PRESIDENT AS SHOWN BY ACTUAL
EXPERIENCE
9. VIVIAN RASMUSSEN TESTIFIED AT THE HEARING ON MAY 7, 1980 THAT SHE
WAS ELECTED TO THE PRESIDENCY IN MAY OF 1979 AND THAT BEFORE THAT SHE
SERVED AS VICE-PRESIDENT OF THE DISTRICT UNIT FOR "TWO OR THREE YEARS."
A. AS PRESIDENT, RASMUSSEN EXPECTS TO BE INVOLVED WITH NEGOTIATIONS
WITH MANAGEMENT AND ADMINISTRATION OF THE CONTRACT FOR THE DISTRICT
UNIT.
B. AS VICE-PRESIDENT, RASMUSSEN CONCEDED THAT SHE WAS "VERY ACTIVE"
IN THE AFFAIRS OF THE DISTRICT UNIT AND REPRESENTED THE UNIT IN
GRIEVANCES, CONTRACT NEGOTIATIONS AND OTHER MEETINGS WITH MANAGEMENT.
C. AS VICE-PRESIDENT, RASMUSSEN ALSO WAS GIVEN OFFICIAL TIME (8
HOURS PER WEEK) TO REPRESENT AND DO WORK FOR THE NATIONAL COUNCIL OF THE
SOCIAL SECURITY DISTRICT OFFICE COUNCIL.
D. IN HIS BRIEF, THE GENERAL COUNSEL CONTENDS THAT "TRADITIONALLY"
THE VICE-PRESIDENT FROM THE SAME UNIT AS THE PRESIDENT HAS "ALWAYS" BEEN
A CEREMONIAL OFFICE-HOLDER. I MUST REJECT THIS CONTENTION AS NOT BEING
SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD. /4/ IT WOULD HAVE BEEN A
SIMPLE MATTER TO INTRODUCE SOME EVIDENCE CONCERNING THE IDENTITY OF THE
COUNTERPART VICE-PRESIDENT DURING RASMUSSEN'S TENURE IN OFFICE AND HIS
OR HER DUTIES AND FUNCTIONS. INSTEAD WE DO NOT EVEN KNOW THE NAME OF
SUCH VICE-PRESIDENT FOR THE REGIONAL UNIT. INDEED, WE DON'T EVEN KNOW
VERY MUCH ABOUT MILLIE SAMMON, THE PRESIDENT, THE LENGTH OF HER TERM IN
OFFICE, OR WHETHER SHE DELEGATED ANY DUTIES TO HER VICE-PRESIDENT OR
NOT. ALL THAT WE REALLY KNOW IS WHAT RASMUSSEN'S DUTIES IN THE DISTRICT
UNIT WERE UNTIL HER ELEVATION TO THE PRESIDENCY.
E. RESPONDENTS' EFFORTS TO ASCERTAIN THE NATURE AND EXTENT
OF LUCERO'S DUTIES AS UNION VICE-PRESIDENT
9. VELMA SLACK, ASSISTANT DISTRICT MANAGER OF THE DENVER DISTRICT
OFFICE SPOKE TO LUCERO AFTER THE ELECTION AND EXPRESSED CONCERN ABOUT
HIS DUAL ROLE AS EEO COUNSELOR AND VICE-PRESIDENT OF THE UNION. LUCERO
REPLIED THAT HE DIDN'T THINK THERE WAS A CONFLICT AND LATER THAT DAY
GAVE HER AN EXCERPT FROM A NEWSLETTER (JT. EXH. NO. 10) ABOUT THE GSA
CASE (TR. 104).
10. AT ABOUT THE SAME TIME, SLACK CALLED VIVIAN RASMUSSEN AND
INQUIRED AS TO WHAT WOULD BE THE RESPECTIVE ROLES OF THE PRESIDENT AND
VICE-PRESIDENT (TR. 105). RASMUSSEN REPLIED THAT SHE HAD NOT MADE ANY
DECISION YET (TR. 105, 132) BUT THAT SHE DIDN'T THINK THERE WAS A
CONFLICT BECAUSE UNDER THE CIVIL SERVICE REFORM ACT "NOW WE CAN WEAR
BOTH HATS" (TR. 105, 37).
11. A MONTH LATER, SLACK AGAIN CALLED RASMUSSEN AND ASKED HER TO
CLARIFY THE ROLES OF THE UNION OFFICIALS BUT RASMUSSEN AGAIN REPLIED
THAT SHE HADN'T MADE ANY DECISION AS TO WHAT DUTIES SHE WOULD DELEGATE
TO LUCERO.
12. IN THE MEANTIME, ON JUNE 1, 1979, E.O. STAFF OFFICER SUZANNE
ELDER REQUESTED AN OPINION FROM LABOR RELATIONS OFFICER ART GARDNER ON
THE QUESTION OF LUCERO'S DUAL ROLE (JT. EXH. 10). HER MEMORANDUM
RECITES HER UNDERSTANDING WITH RESPECT TO THE DUTIES OF THE
VICE-PRESIDENT FOR THE DISTRICT OFFICE AND HER OPINION THAT THE GSA CASE
IS "NOT PARALLEL TO MR. LUCERO'S SITUATION."
A. AT THIS POINT IN TIME, IT WAS NOT UNREASONABLE FOR MS. ELDER TO
RELY ON HER KNOWLEDGE OF THE DUTIES AND FUNCTIONS EXERCISED BY VIVIAN
RASMUSSEN, THE OUTGOING VICE-PRESIDENT, AS THE BASIS FOR HER
RECOMMENDATION. CERTAINLY, LUCERO DID NOT KNOW WHAT HIS DUTIES WERE TO
BE (TR. 18) AND RASMUSSEN OFFERED NO GUIDANCE DESPITE TWO REQUESTS FROM
SLACK. IN MY OPINION, IT WAS MORE LOGICAL AND MORE REASONABLE TO ASSUME
THAT THERE WOULD BE NO CHANGE IN THE FUNCTIONS OF THE VICE-PRESIDENT
THAN TO ENGAGE IN CONJECTURE AND ASSUME THERE WOULD BE CHANGES.
B. ACCORDING TO RASMUSSEN, SHE ALSO TALKED TO ART GARDNER ON THE
TELEPHONE AND HE REQUESTED HER TO SEND HIM A LETTER GIVING HIM A LIST OF
THE UNION OFFICERS AND THEIR DUTIES (TR. 38). SHE WAS UNABLE TO FIND A
COPY OF HER LETTER TO GARDNER. THE FOREGOING ILLUSTRATES THAT BEFORE
RESPONDENTS MADE ANY DECISION WITH RESPECT TO LUCERO, GENUINE EFFORTS
WERE MADE TO ASCERTAIN LUCERO'S DUTIES IN ORDER TO DETERMINE THE
APPLICABILITY OF THE GSA DECISION.
C. IN REBUTTAL, THE GENERAL COUNSEL RECALLED VIVIAN RASMUSSEN FOR
THE PURPOSE OF PROVING THAT IN MAY OR JUNE OF 1979, SHE TOLD SLACK HER
DUTIES HAD NOT CHANGED, JUST HER TITLE HAD CHANGED. ASSUMING, ARGUENDO,
THAT RASMUSSEN MADE SUCH A STATEMENT IT DOES NOT RESOLVE THE QUESTION OF
WHAT LUCERO'S DUTIES WERE TO BE. IN THE SAME REBUTTAL TESTIMONY,
RASMUSSEN CORROBORATES SLACK'S MANY EFFORTS TO ASCERTAIN THE PRECISE
NATURE OF LUCERO'S DUTIES. RASMUSSEN TESTIFIED IN THIS RESPECT AS
FOLLOWS:
SHE ALSO WANTED TO KNOW WHAT I WAS GOING TO ASSIGN TO MR. LUCERO. I
HAD NO IDEA WHAT I WAS
GOING TO ASSIGN MR. LUCERO BECAUSE I HAVE NO IDEA WHAT WAS GOING TO
COME UP IN THE COMING YEAR
THAT I MIGHT WANT TO HAVE HIM LOOK INTO. (TR. 132)
IN HER EARLIER TESTIMONY, RASMUSSEN TESTIFIED IN A SIMILAR VEIN, AS
FOLLOWS:
I HADN'T REALLY GIVEN ANY THOUGHT HOW I WOULD USE RAY TOO MUCH. I
NEVER KNEW WHAT MIGHT
COME UP. I REALLY DIDN'T HAVE ANYTHING TO USE RAY FOR AT THE MOMENT.
(TR. 37)
D. I FIND AND CONCLUDE, BASED UPON MY EVALUATION OF THE TESTIMONY
AND THE CREDIBILITY OF THE WITNESSES, THAT IN JULY 1979 THE UNION FAILED
TO MAKE CLEAR TO RESPONDENTS PRECISELY WHAT THE DUTIES OF NEWLY ELECTED
VICE-PRESIDENT LUCERO WOULD BE. ALTHOUGH THE UNION PRESIDENT MAY HAVE
TOLD RESPONDENTS THAT HER OWN DUTIES HAD NOT CHANGED THAT SIGNIFICANTLY
AS FAR AS THE DISTRICT OFFICE WAS CONCERNED, SHE FAILED TO BE RESPONSIVE
TO THE INQUIRIES CONCERNING LUCERO'S DUTIES. I AM NOT PERSUADED BY HER
TESTIMONY THAT SHE CONVEYED TO RESPONDENTS THE IDEA THAT LUCERO WAS
ASSUMING A CEREMONIAL OFFICE WITH NO DUTIES. ON THE CONTRARY, I
CONCLUDE THAT RASMUSSEN WAS GENUINELY UNDECIDED AS TO WHAT DUTIES SHE
WOULD GIVE TO LUCERO. HER INDECISION WAS BASED PARTLY ON THE FACT THAT
SHE REALLY HADN'T GIVEN MUCH THOUGHT AS TO WHAT FUNCTIONS SHE COULD
CONTINUE TO PERFORM, TIME PERMITTING, AND WHAT FUNCTIONS SHE COULD
DELEGATE, CONSIDERING LUCERO'S OWN INEXPERIENCE. FURTHER, SHE WAS AWARE
OF LUCERO'S DESIRE TO CONTINUE AS AN EEO COUNSELOR, ON THE ONE HAND, AND
THE CLEAR LANGUAGE IN THE GSA CASE THAT A CONFLICT OF INTEREST DEPENDED
UPON WHAT DUTIES WERE PERFORMED BY THE PARTICULAR UNION OFFICIAL. (TR.
18) AS A RESULT OF RASMUSSEN'S INDECISION AND UNRESPONSIVENESS,
RESPONDENTS' REPRESENTATIVES WERE UNABLE TO ASCERTAIN PRECISELY WHAT
LUCERO'S DUTIES WOULD BE.
E. FROM THE DATE OF HIS INSTALLATION AS VICE-PRESIDENT IN MAY 1979
UNTIL JULY 18, 1979 LUCERO APPARENTLY HAD NO ASSIGNED DUTIES OTHER THAN
WHAT WAS SPECIFIED IN THE UNION CONSTITUTION TO PRESIDE IN THE ABSENCE
OF THE PRESIDENT. AGAIN, THE REASON FOR HIS NOT HAVING ANY ASSIGNED
DUTIES WAS NOT BECAUSE HE HAD BEEN ELECTED TO A "CEREMONIAL OFFICE" BUT
RATHER BECAUSE THE PRESIDENT HAD NOT DECIDED WHAT DUTIES TO ASSIGN HIM.
F. THE ALLEGED UNFAIR LABOR PRACTICE
13. IN A LETTER DATED JULY 18, 1989, ACTING SSA REGIONAL
COMMISSIONER PATRICIA J. LIVERS TERMINATED RAYMOND LUCERO AN AN EEO
COUNSELOR. THE REASONS GIVEN BY LIVERS FOR THE TERMINATION ARE THE
OPINION OF DHEW THAT LUCERO'S SERVING BOTH AS A UNION VICE-PRESIDENT AND
AN EEO COUNSELOR CREATED A CONFLICT OF INTEREST AND CONFLICTED WITH AN
SSA POLICY PROHIBITING SUCH CONCURRENT OFFICE-HOLDING.
A. I REJECT THE GENERAL COUNSEL'S CONTENTION THAT LUCERO WAS FORCED
TO CHOOSE WHICH POSITION HE WOULD RETAIN. I CONCLUDE THAT RESPONDENTS,
AFTER UNSUCCESSFULLY ATTEMPTING TO ASCERTAIN WHETHER THE DUTIES TO BE
ASSIGNED TO LUCERO WOULD BE DIFFERENT FROM THOSE EXERCISED BY RASMUSSEN,
DECIDED TO APPLY THEIR RULE PRECLUDING HIGH UNION OFFICIALS FROM
SIMULTANEOUSLY SERVING AS EEO COUNSELORS. IN THE CIRCUMSTANCES OF THIS
CASE, I FIND IT UNNECESSARY TO DECIDE WHETHER SUCH ACTION BY RESPONDENTS
WAS A MANAGEMENT RIGHT UNDER SECTION 7106(A)(2)(A) OF THE STATUTE. I
NOTE, HOWEVER, THAT IN THE GSA CASE THE UNION OFFICIAL WAS "FORCED TO
CHOOSE" BETWEEN HER EEO POSITION AND THE UNION POSITION. SHE CHOSE TO
RESIGN HER UNION POSITION. HERE, RESPONDENTS TERMINATED LUCERO FROM HIS
EEO POSITION AND DID NOT REQUIRE HIM TO RESIGN HIS UNION POSITION.
B. IN MY OPINION, THERE WAS A REASONABLE BASIS FOR RESPONDENTS'
DECISION AND THERE IS NO EVIDENCE THAT IT WAS BASED ON AN ANTI-UNION
MOTIVATION.
FIRSTLY, I AGREE WITH RESPONDENTS THAT THE OFFICE OF VICE-PRESIDENT
IS A HIGH UNION OFFICE AND IS GENERALLY PERCEIVED AS SUCH BY EMPLOYEES
AND MEMBERS. THUS, IT IS THE VICE-PRESIDENT WHO AUTOMATICALLY SUCCEEDS
TO A HIGHER STATUS SHOULD THE PRESIDENT DIE OR RESIGN. IN THIS CASE,
THE REGIONAL VICE-PRESIDENT WOULD BECOME PRESIDENT AND THE DISTRICT
VICE-PRESIDENT WOULD BECOME THE PRINCIPAL SPOKESMAN AND REPRESENTATIVE
OF THE DISTRICT UNIT. I FIND IT DIFFICULT TO ACCEPT THE PROPOSITION
THAT A VICE-PRESIDENT SOMEHOW CAN BE A LOWER OFFICAL THAN THE CHIEF
STEWARD, SOLELY DEPENDING UPON THE WHIM OF THE PRESIDENT AND THE KIND OF
DUTIES HE OR SHE DECIDES TO ASSIGN TO THE VICE-PRESIDENT. SECONDLY,
THIS IS PARTICULARLY TRUE IN THIS CASE WHERE THE VICE-PRESIDENT'S ROLE
IN THE PAST HAS BEEN AN EXTREMELY ACTIVE ONE AND RESPONDENT HAD NO BASIS
FOR ASSUMING THAT LUCERO'S ROLE WOULD BE DIFFERENT FROM RASMUSSEN'S.
INDEED, THE INCREASED RESPONSIBILITY OF RASMUSSEN AS PRESIDENT PLUS HER
EX OFFICO DUTIES AS A MEMBER OF THE COUNCIL NECESSARILY WOULD REQUIRE,
IT SEEMS TO ME, SOME DELEGATION OF RESPONSIBILITY TO THE VICE-PRESIDENT.
THIRDLY, I CONCLUDE THAT REGARDLESS OF THE DUTIES ACTUALLY ASSIGNED TO
LUCERO, THE DUAL ROLE OF EEO COUNSELOR AND UNION VICE-PRESIDENT PRESENTS
AT LEAST AN APPARENT CONFLICT OF INTEREST BECAUSE THE OFFICE OF
VICE-PRESIDENT IS TRADITIONALLY REGARDED AS A MAJOR UNION OFFICE AND THE
INCUMBENT OFFICER IS AN HEIR APPARENT OR POSSIBLE CANDIDATE FOR THE
PRESIDENCY. THUS, THIS CASE IS DISTINGUISHABLE FROM THE GSA CASE WHICH
INVOLVED, ACCORDING TO THE ADMINISTRATIVE LAW JUDGE, A MINOR UNION
OFFICIAL WHOSE DUTIES WERE CONFINED TO THE INTERNAL MANAGEMENT OF THE
UNION. THE GSA CASE IS ALSO DISTINGUISHABLE ON THE GROUND THAT AT THE
TIME OF THE UNFAIR LABOR PRACTICE THE MINOR UNION OFFICIAL ACTUALLY HAD
NO REPRESENTATIONAL OR ADVERSARIAL DUTIES. HERE, AT THE TIME OF THE
ALLEGED UNFAIR LABOR PRACTICE, RESPONDENTS HAD NO GENUINE BASIS FOR
CONCLUDING THAT LUCERO'S ROLE AS VICE-PRESIDENT WOULD NOT IN SOME WAY
INVOLVE REPRESENTATIONAL OR ADVERSARIAL DUTIES IN VIEW OF PAST
EXPERIENCE. RESPONDENTS' EFFORTS OVER A PERIOD OF TWO MONTHS TO
ASCERTAIN THE PRECISE NATURE OF LUCERO'S COUNSELOR'S JOB IS COMMENDABLE.
ITS EFFORTS TO FIRST TRY TO COMPLY WITH THE HOLDING OF THE GSA CASE,
RATHER THAN TAKING PRECIPITOUS ACTION BASED SOLELY ON THE ELECTION, IS
ALSO COMMENDABLE.
IN DETERMINING WHETHER RESPONDENTS HAVE VIOLATED THE STATUTE, ITS
CONDUCT MUST BE JUDGED BY THE REASONABLENESS OF ITS ACTIONS IN ALL THE
CIRCUMSTANCES. IN VIEW OF THE FOREGOING, I RECOMMEND DISMISSAL OF THE
COMPLAINT ALLEGING A VIOLATION OF SECTION 7116(A)(1) AND (2) OF THE
STATUTE.
G. EVENTS OCCURRING AFTER THE ALLEGED UNFAIR LABOR
PRACTICE
12. ON JULY 27, 1979, LUCERO WROTE TO LIVERS REQUESTING
REINSTATEMENT AS AN EEO COUNSELOR AND STATING THAT IF HIS REQUEST WERE
GRANTED, THEN HE WOULD RESIGN HIS POSITION OF UNION VICE-PRESIDENT. HIS
REQUEST WAS GRANTED.
13. ON SEPTEMBER 6, 1979, LUCERO SENT A LETTER OF RESIGNATION TO
VIVIAN RASMUSSEN, PRESIDENT OF AFGE LOCAL 1802, RESIGNING AS A
VICE-PRESIDENT OF THE UNION TO OBTAIN REINSTATEMENT AS EEO COUNSELOR.
14. ON SEPTEMBER 14, 1979, RASMUSSEN NOTIFIED LUCERO BY LETTER THAT
SHE WAS RELIEVING HIM OF HIS UNION VICE-PRESIDENCY PENDING RESOLUTION OF
THE ISSUE OF HIS HOLDING UNION OFFICE WHILE SERVING AS AN EEO COUNSELOR.
RASMUSSEN ALSO SENT A LETTER TO SSA DISTRICT MANAGER ROBERT DAVIS
NOTIFYING DAVIS OF HER ACTION.
17. TO FILL LUCERO'S JOB AS VICE-PRESIDENT, RASMUSSEN APPOINTED WADE
MAYER AS ACTING VICE-PRESIDENT. THIS APPARENTLY OCCURRED IN SEPTEMBER.
IN ORDER TO JUSTIFY ITS POSITION THAT THE DISTRICT VICE-PRESIDENT HAD
REPRESENTATIONAL AND ADVERSARIAL DUTIES WITHIN THE MEANING OF THE GSA
CASE, RESPONDENT OFFERED EVIDENCE TO SHOW THAT WADE MAYER EXERCISED SUCH
DUTIES. THE GENERAL COUNSEL ARGUED THAT EVENTS OCCURRING AFTER THE
ALLEGED UNFAIR LABOR PRACTICE WERE NOT RELEVANT. IN EFFECT, THE GENERAL
COUNSEL IS CONTENDING THAT GREATER WEIGHT BE GIVEN TO RASMUSSEN'S
TESTIMONY A YEAR AFTER THE ALLEGED VIOLATION AS TO WHAT SHE INTENDED TO
ASSIGN TO LUCERO, THAN TO EVIDENCE CONCERNING THE KIND OF FUNCTIONS
ACTUALLY ASSIGNED TO LUCERO'S SUCCESSOR.
I AGREE WITH RESPONDENTS THAT WE ARE CONCERNED IN THIS CASE, NOT ONLY
WITH THE DUTIES OF RAYMOND LUCERO AS VICE-PRESIDENT, BUT ALSO WITH THE
OFFICE OF VICE-PRESIDENT. TO THE EXTENT THAT SUBSEQUENT EVENTS SHED
LIGHT ON THIS QUESTION, I REGARD THE EVIDENCE AS RELEVANT AND ADHERE TO
MY RULING AT THE HEARING.
H. DUTIES OF ACTING VICE-PRESIDENT WADE MAYER
18. BY LETTER DATED SEPTEMBER 14, 1979, PRESIDENT RASMUSSEN NOTIFIED
RESPONDENTS THAT BECAUSE SHE WAS INVOLVED IN OTHER PRESSING UNION
BUSINESS SHE WAS DESIGNATING ACTING DISTRICT OFFICE VICE-PRESIDENT WADE
MAYER "TO BE THE MAIN SPOKESMAN FOR LOCAL 1802 AND HANDLE THE DETAILS OF
THE MEETING FOR THIS QUARTER."
A. AT RESPONDENTS' REQUEST ONE OF THE AGENDA ITEMS AT THIS QUARTERLY
CONSULTATION MEETING WAS "LIST OF OFFICERS AND CLARIFICATION OF ROLES."
MS. SLACK TESTIFIED THAT SHE WAS STILL TRYING TO ASCERTAIN THE
VICE-PRESIDENT'S DUTIES.
19. IN NOVEMBER 1979, ACCORDING TO AURORA BRANCH MANAGER MARY ANN
TOWNSEND, A NEW OPERATIONAL PROCEDURE WAS PRESENTED TO WADE MAYER, WHO
REVIEWED IT, DISCUSSED IT WITH EMPLOYEES, AND MET WITH MANAGEMENT TO
POINT OUT HIS VIEWS AND CONCERNS.
20. ON JANUARY 21, 1980, WADE MAYER CALLED TO SCHEDULE A GRIEVANCE
MEETING WHICH WAS HELD ON JANUARY 24. HE ATTENDED THE MEETING WITH
CHIEF STEWARD ART FORD AND KENNETH BULL, AFGE NATIONAL REPRESENTATIVE.
ALTHOUGH BULL WAS THE SPOKESMAN, MAYER NEVERTHELESS WAS THERE AS A UNION
REPRESENTATIVE (TR. 47).
21. ON JANUARY 24, 1980, MAYER MET WITH MANAGEMENT FOR TWO HOURS TO
DISCUSS THE SNOW LEAVE GRIEVANCE AND ON THE SAME DATE MET FOR 45 MINUTES
WITH MANAGEMENT TO DISCUSS HOW THE WORK FLOW OR LAYOUT OF THE OFFICE
COULD BE CHANGED TO ACCOMODATE THE PAPER SHREDDER (RESP. EXH. NO. 11,
TR. 123).
22. MS. TOWNSEND ALSO CREDIBLY TESTIFIED THAT WADE MAYER REPRESENTED
AN EMPLOYEE WHO OBJECTED TO A PERFORMANCE DISCUSSION BEING PLACED IN HER
PERSONNEL EXTENSION FILE. IT'S NOT CLEAR WHETHER THIS INCIDENT WAS A
FORMAL GRIEVANCE BUT CLEARLY IT WAS HANDLED BY MAYER (TR. 124-126).
23. MS. TOWNSEN